Wed., Sept. 14

federal subject matter jurisdiction diversity and alienage jurisdiction

U. S. Const. Article III. Section. 2 U.S. Const. Article III.  Section. 2.  Clause 1:The judicial Power shall extend …to Controversies …between a State and Citizens of another State;--between Citizens of different States…and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 

distinguish – constitutional scope of diversity/alienage from scope of 1332

Constitutional scope of diversity minimal diversity = Is any P a citizen of a different state from any D? If so, then there is minimal diversity.

Sec. 1332. - Diversity of citizenship; amount in controversy; costs (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between -

(1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state ... as plaintiff and citizens of a State or of different States.

Strawbridge rule controversy between “citizens of different states” in 28 USC § 1332(a)(1) and (a)(3) means complete diversity

complete diversity = Is any P a citizen of the same state as any D complete diversity = Is any P a citizen of the same state as any D? If so, no complete diversity

Constitutional scope of alienage (“between a State, or the Citizens thereof, and foreign States, Citizens or Subjects”)

Art. III – need minimal alienage Is anyone on one side of the “v Art. III – need minimal alienage Is anyone on one side of the “v.” a citizen of a state and anyone on the other side of the “v.” a foreign citizen or subject? Is so then minimal alienage.

(1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state ... as plaintiff and citizens of a State or of different States.

1332(a)(2) – controversy between “citizens of a State and citizens or subjects of a foreign state” means complete alienage

complete alienage – Are aliens on both sides of the “v. ” complete alienage – Are aliens on both sides of the “v.”? Are citizens of a state (even different states) on both sides of the “v.”? If either is true, not complete alienage

Examples: is there federal SMJ under 28 USC 1332(a) Examples: is there federal SMJ under 28 USC 1332(a)? assumptions: - jurisdictional minimum is met - action is brought in federal court by the plaintiff

New Yorker sues Californian, who impleads his insurer, a New Yorker NY CA NY

Californian sues a German (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state ... as plaintiff and citizens of a State or of different States.

German sues a Frenchman (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state ... as plaintiff and citizens of a State or of different States.

New Yorker sues Californian and Frenchman (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state ... as plaintiff and citizens of a State or of different States.

A New Yorker and a German sue a Californian and a German (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state ... as plaintiff and citizens of a State or of different States.

Californian sues a French citizen admitted for permanent residency in the United States who is domiciled in California (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state ... as plaintiff and citizens of a State or of different States.

German sues French citizen admitted for permanent residency in the United States who is domiciled in California (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state ... as plaintiff and citizens of a State or of different States.

Californian sues Elizabeth Taylor, an American national domiciled in France (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state ... as plaintiff and citizens of a State or of different States.

- Dred Scott, a slave owned in Missouri, is taken by his master to Wisconsin Territory (a free territory) - Scott lives there for a while and then returns with his master to Missouri. - Sanford, a New York citizen becomes Scott’s master - Scott sues Sanford in federal court to establish that his time in a free territory had made him free under state law - diversity jurisdiction?

A German sues a Frenchman and a New Yorker (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state ... as plaintiff and citizens of a State or of different States.

A citizen of DC sues a Virginian under Virginia state law

1332(e) The word ''States'', as used in this section, includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico

U. S. Const. Article III. Section. 2 U.S. Const. Article III.  Section. 2.  Clause 1:The judicial Power shall extend …to Controversies …between a State and Citizens of another State;--between Citizens of different States…and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 

National Mut. Ins. Co. v. Tidewater Transfer Co., Inc. (1949)

What is domicile?

Not residence! Not nationality!

Baker v. Keck (E.D. Ill. 1936)

What is the citizenship of the Progressive Miners of America?

Baker was a citizen of Illinois at the time of the events being adjudicated. Shouldn’t that matter?

Story: The requisite animus is the present intention of permanent or indefinite residence in a given place or country, or, negatively expressed, the absence of any present intention of not residing there permanently or indefinitely.

Story: It will be observed that, if there is an intention to remain, even though it be for an indefinite time, but still with the intention of making the location a place of present domicile, this latter intention will control, even though the person entertains a floating intention to return at some indefinite future period.

Restatement of the Conflict of Laws § 15 To acquire a domicil of choice, a person must establish a dwelling-place with the intention of making it his home.   The fact of physical presence at a dwelling-place and the intention to make it a home must concur; if they do so, even for a moment, the change of domicil takes place.‘

Baker moved to Oklahoma, at least in part, to create diversity Baker moved to Oklahoma, at least in part, to create diversity. Shouldn’t that matter?

I'm domiciled in New York I'm domiciled in New York. I then establish the intent to move to Arizona permanently, but on the way I get in accident in Oklahoma, where I remain for rehabilitation. Where is my domicile?

P sells his home in Illinois and moves to OK with the hope of finding work. He lives in a hotel until he can find work and an apartment. Domiciled in OK?

Prisoners? Students?

Citizenship of Corporations for Diversity Purposes

Use 1332(c)(1) (c) For the purposes of this section and section 1441 of this title— (1) a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business…

P (a citizen of New York) sues the D Corp (incorporated in California with its principal place of business in New York) under state law for more than $75K. Diversity under 1332(a)?

P, a citizen of California, sues the D Corp. in federal court in the N P, a citizen of California, sues the D Corp. in federal court in the N.D. Cal. under state law for more than $75k The D. Corp. has its three of its four manufacturing plants and 2/3 of its employees in Texas Its other plant and around 1/4 of its employees are in Louisiana Its financial and administrative headquarters is in LA, where the President, Board of Directors and 1/12 of its employees are located SMJ?

Hertz Corp. v. Friend (US 2010)

The P Corp., incorporated in Delaware with its US PPB in California but its total world-wide PPB in Germany, sues the D Corp., incorporated in France with its US PPB in California but its total world-wide PPB in France. Diversity case?

P (NY) sues the D law firm, with its one office in NY P (NY) sues the D law firm, with its one office in NY. The partners’ commute to the office from their homes in NJ and CT. Diversity?

devices to create diversity/alienage

28 USC §1359 A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court.

X (Cal. ) slips and falls in a store owned by D (Cal. ) X (Cal.) slips and falls in a store owned by D (Cal.). Can X generate diversity jurisdiction by assigning his lawsuit to P (Nev.)?

Imagine that the contract right had been assigned to Kramer for $10,000, reserving no interest in the contract claim

devices to defeat diversity/alienage

P (Texas) assigns 1/10 of its contract right against D (New York) (worth $8,000 if the action prevails) to X (New York) for $1,000 P and X sue D in state court in Texas May D remove to federal court?

Rose v. Giamatti (S.D. Ohio 1989)

In fraudulent joinder cases the underlying reason for removal is that there is no factual basis upon which it can be claimed that the resident [!] defendant is jointly liable or where there is such liability there is no purpose to prosecute the action against the resident defendant in good faith….

- P (NJ) wishes to sue the D Corp. for fraud - D Corp - P (NJ) wishes to sue the D Corp. for fraud - D Corp. has is incorporated in NY with PPB in NY - P does not want the action removed by the D Corp. to federal court - So P joins X (NJ), an accountant who was in part responsible for the D Corp.’s misrepresentations, as a defendant - Can the D Corp. successfully remove?